1
Macaulay, the India Penal Code and Labour in the British Empire
Barry Wright *
In a few months-I hope in a few weeks, -we shall send up the Penal Code to
Government. We have got rid of the punishment of death, except in the case of
aggravated treason and wilful murder. We shall also get rid indirectly of everything
that can properly be called slavery in India. There will remain civil claims on
particular people for particular services, which claims may be enforced by civil
action; but no person will be entitled, on the plea of being the master of another, to do
anything to that other which it would an offence to do to a free man.
-Thomas Macaulay to Zachary Macaulay, Calcutta, 12 October 1836
1
Thomas Macaulay, a leading parliamentary contributor to the 1832 Reform Act, the
1833 India Charter Act, and the imperial abolition of slavery (1833-4), left Westminster in
1834 to take up appointment to the Governor General of India’s Legislative Council where he
initiated education reforms, curbed press censorship and the special European privileges in
civil proceedings, and drafted the India Penal Code (IPC), the first criminal code enacted in
the British Empire. Influenced by Jeremy Bentham’s theories of ‘scientific’ legislation and
‘universal’ jurisprudence, Macaulay’s code eliminated the common law and offered a modern
presentation and progressive rationalisation of English criminal laws. The IPC remains an
impressive example of comprehensive law reform, despite retrograde changes introduced in
the 1860 enacted version which continued with later colonial amendments, adoptions
elsewhere in British South Asia and after independence. 2 At the same time Macaulay’s
reforms are criticised by post-colonial and nationalist historians (the term Macaulayite is still
in use to denigrate anglicised Indians). Despite its technical legal qualities, the IPC was a
product of Macaulay’s cultural milieu and privileged position, its belated imposition after the
1857-8 Mutiny an attempt to make the law, and by extension British colonial rule, more
effective and legitimate. It was also crafted within a broader context of the contentious shift
from slavery to indentured labour in the planter colonies.
Macaulay’s IPC is examined here from the perspective of labour transitions in the 19th
century British Empire. Macaulay embraced utilitarianism as he collaborated with James Mill
on the Charter Act, becoming in India the very image of a utilitarian ‘enlightened despotic
legislator,’ but his concerns about colonial labour exploitation had deeper roots in his
abolitionist Clapham Sect background (his father Zachary was a close associate of William
Wilberforce and James Stephen and had been Governor of Sierra Leone). A clause in the
India Charter Act prohibiting practices of slavery was opposed by orientalists such as
Wellington, but seemed to be vindicated by the imperial slavery legislation passed shortly
after. Macaulay had nonetheless criticised the imperial abolition measures as compromised
*
Professor of Law, History and Criminology, Carleton University, Ottawa, Canada. This paper is a work in progress, aspects of which to be
presented at the Research Seminar Series TC Beirne School of Law, University of Queensland 9 March 2012 and at the Legal Histories of
the British Empire Conference, National University of Singapore 6 July 2012. Please do not quote from this draft without permission
([email protected]).
1
Thomas Pinney ed. The Letters of Thomas Babbington Macaulay Volume 3,1834-41 (Cambridge: Cambridge Univeresity Press, 1976), 193
2
See eg., E Stokes, The English Utilitarians and India (Oxford, Oxford University Press, 1959; J Clive, Macaulay: the Shaping of the
Historian (Cambridge Mass: Harvard University Press, 1987); K.J.M Smith, “Macaulay’s Indian Penal Code: An Illustration of the
Accidental Function of Time, Place and Personalities in Law Making” in W.M. Gordon and T.D. Fergus eds., Legal History in the Making
(Proceedings of the Ninth British Legal History Conference, Glasgow, 1989) (London: Hambledon, 1991), 145; Wing-Cheong Chan, Barry
Wright and Stanley Yeo (eds), Codification, Macaulay and the Indian Penal Code: the Legacies and Modern Challenges of Reform
(Ashgate, 2011)
2
and insufficient yet faced constraints in drafting his own provisions in India. His draft code
prompted wide-ranging objections from commercial interests, European residents,
evangelicals and orientalists. Indigenous slavery persisted in the autonomous Princely States
and potential obstacles to the rapid growth of an Empire-wide trade in indentured labour from
India were avoided. Recent scholarship would suggest that these failures may have reflected
an ambivalence rooted in his fraught relationship with Zachary, the inherent cultural biases
and waning activism of the British abolitionists, and the more impersonal factors would
include contradictions in colonial policies and pressure from the East India Company poised
to expand trade in indentured labour with the demise of slave labour. I argue that the
limitations and frustration of Macaulay’s labour-related provisions are a neglected aspect of
larger narratives about imperial abolition and its aftermath. The experience also illustrates the
limits of progressive law reform initiatives within the context of imperial economic
imperatives, which involved continuing planter interests, and the political impulses of
colonial rule, which became increasingly complex from the 1830’s.
The aim of this study is to situate the IPC within the wider historiographies of the
British Empire in relation to labour transitions and law reform in the 19th century. It begins
with a brief survey of these historiographies, focusing on slavery and indentured labour, the
English law reform context and influences on Macaulay’s codification project. An overview
of Macaulay’s IPC draft summarises its main features and focuses on the labour related
provisions. The paper closes with a brief survey of the development of the imperial trade in
indentured labour from India, illustrated with examples from the South Pacific.
1. British Imperial Historiographies: 19th Century Labour Issues and Law Reform
The recent historical interest in matters such as imperial administrative networks, the
modernization of colonial governance and identity formation has opened new avenues of
scholarship, revealed complexities and added nuance to the positive and negative
generalisations that characterise the older historiographies about the British Empire. Critical
approaches to empire saw many historians in late 20th century turn to previously-neglected
local experiences, social and cultural histories from below, specific national narratives, and
the recovery of subordinated and diverse voices. More recent interest in comparative colonial
histories and global networks marks renewed interest in context and a shift away from postcolonial paradigms premised on progressive teleologies of nationalism. At the same time this
new interest is not a retreat to the older whiggish narratives that celebrate the achievements of
Empire and the enlightened British imperial burden. Nor is it a displacement of history from
‘below’ by history from ‘above’ or a reversion to attempts to discern universal truths from
comparative history. 3 Recent work on imperial legal networks and comparative colonial legal
histories exemplify these recent trends in imperial historiographies. Scholarship on matters
such as colonial judges and their relations with colonial governments, criminal law
controversies and reform, property law and development recognise both particular local
circumstances and the importance of broader networks, that developments were not simply
the product of directives from London but were informed by local struggles and ideas
circulating between geographically distant places, facilitated by inter-colonial migration of
legal personnel. 4
3
See for example, C.A. Bayly, The Birth of the Modern World, 1780–1914: Global Connections and Comparisons (London: Blackwell
Publishers, 2004); P. Duara, Rescuing History from the Nation (Chicago: University of Chicago Press, 1995). Catherine Hall, Civilising
Subjects: Colony and Metropole in the English Imagination, 1830-1867 (Chicago and London, University of Chicago Press, 2002); Robert
Gregg Inside Out, Outside In: Essays in Comparative History (London, 2000); Jennifer Pitts, A Turn to Empire: The Rise of Imperial
Liberalism in Britain and France (Princeton, 2005)
4
See for example John McLaren, Dewigged, Bothered and Bewildered: British Colonial Judges on Trial, 1800–1900 (Toronto: University
of Toronto Press, 2011) ; Martin J. Weiner, An Empire on Trial: Race, Murder and Justice under British Rule, 1870-1935 (Cambridge:
Cambridge University Press, 2009); Bridget Brereton, Law, Justice and Empire: The Colonial Career of John Gorrie, 1829-1892 (Kingston:
3
a) Changing British Political and Economic Contexts
I begin by attempting to locate the place of the IPC in the context of broader imperial
political and economic challenges in the mid 19th century. Law played a prominent role in
transformations in colonial governance and labour economies of the period.
Many of the political and administrative challenges in the second quarter of the
nineteenth century were latent in the second British Empire that emerged in the wake of the
American revolution. These reflected unresolved tensions between formal constitutional
claims about the rule of law and British liberties on one hand and the pressures of imperial
sovereignty and economic interests on the other. Chris Bayly has surveyed liberal and
utilitarian-inspired administrative reforms sparked by renewed colonial crises and repressive
responses that contradicted formal claims about enlightened British government,
constitutionalism and legality (as well as the persisting problems of imperial financing). 5 The
largely European settler colonies, beginning with the Canadas, enjoyed increasing responsible
and self-government while India became the main laboratory for many of the other
innovations in imperial administration. Bayly also notes that reforms associated with the rise
of the modern state, often inspired by utilitarianism and promoted through departments such
as the Colonial and India Offices, mirrored reforms, and were often more marked, than
domestic reform initiatives in the metropole. 6
Law reforms played a central role in the modernisation and rationalisation of colonial
administration. Law is prominent in the reforms promoted by Lords Durham and Sydenham
in the wake of the 1837-8 Canadian rebellions. Despite the experience and controversy of
repressive responses to the Irish rebellion (1798-1800) and the Canadian rebellions, similar
forms of summary military justice continued to be deployed elsewhere, notably India (18578) and Jamaica (1865-66). R.W. Kostal’s recent study of Governor Eyre’s controversial
response to the Jamaican insurrection notes how arbitrary responses not only highlighted
contradictions between the exigencies of sovereignty and formal claims about the rule of law
in colonial settings but also prompted intense debate about the legitimacy of imperial rule
amongst the Victorian political classes in London. 7 Nasser Hussain’s recent study of 19th
century British India also focuses on the relationship between the rhetoric of British
constitutionalism and emergency, noting that, [t]he ideological justification for the British
presence in India drew heavily on a much-vaunted traditions of ancient British liberty and
University of the West Indies Press, 1997); Bruce Kercher, An Unruly Child: A History of Law in Australia (Sydney: Allen and Unwin,
1995); John M Bennett, Sir Francis Forbes: First Chief Justice of New South Wales, 1823-1837 (Sydney: Federation Press, 2001);
P. Karsten, Between Law and Custom: High and Low Legal Cultures in the Lands of the British Diaspora, 1600-1900 (Cambridge:
Cambridge University Press, 2002); J. McLaren, A.R. Buck and N.E. Wright eds., Despotic Dominion: Property Rights in British Settler
Societies (Vancouver: University of British Columbia Press, 2005); H. Foster, B.L. Berger, and A.R. Buck (eds.), The Grand Experiment:
Law and Legal Culture in British Settler Societies (Vancouver, University of British Columbia Press, 2008); Russell Smandych, ‘To Soften
the Extreme Rigor of their Bondage: James Stephen’s Attempt to Reform the Colonial Slave Laws of the West Indies, 1813-1833 (2005) 25
Law and History Review, 537 and Smandych, ‘Mapping Imperial Legal Connections: Toward a Comparative Historical Sociology of
Colonial Law’ (forthcoming); N. Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law (Ann Arbor: University of
Michigan Press, 2003) R.W. Kostal, A Jurisprudence of Power: Victorian Empire and the Rule of Law (Oxford: Oxford University Press,
2005).
5
See Bayly, Imperial Meridian: The British Empire and the World, 1780–1830 (London: Longman, 1989). Bayley writes: “Viewed in the
longer term, though, the 1830s and 1840s still seem to represent a watershed in the style of government both in the colonies and Britain,
though it would be naïve to see this simply as a watershed between the ancien régime and liberalism. The decline of what some Canadians
called ‘Pitt’s system’ and what with justice could also be called ‘the Wellesley system’ was a long process marked by savage breaks such as
the Canadian rebellion of 1837, the Great Famine in Ireland or the Indian Mutiny of 1857” (237-8). See also, J.G.A. Pocock, The Discovery
of Islands: Essays in British History (Cambridge: Cambridge University Press, 2005) 114–63
6
Bayly’s research focuses on South Asia, and utilitarian-inspired modern informational orders that included surveys, assessments, and
mapping that helped to regularise revenue collection, facilitated trade, and with transformative epistemological and conceptual dimensions
that helped to promote wider allegiance, compliant identity, and public order. He also notes the development of uniform administrative,
legal, and educational structures that attempted to curb special categories of subjects who claimed superior status, or alternatively were
condemned to inferior status under the law -see Bayly, ‘Returning the British to South Asian History: The Limits of Colonial Hegemony’
(1994) 17(2) South Asia,1; The Birth of the Modern World, 1780–1914, above n. 22, at 247–8
7
Kostal, n 4
4
lawfulness ... Government by rules became the basis for the conceptualization of the “moral
legitimacy” of British colonial rule.” 8 As Fitzjames Stephen recognized in that setting mid
19th century, “[t]he establishment of a system of law which regulates the most important parts
of the daily life of the people, constitutes in itself a moral conquest more striking, more
durable, and far more solid, than the physical conquest which renders it possible.” 9
The place of law in British India and its relation to the rest of the Empire is my
particular interest here and here Elizabeth Kolsky has called for further scholarship on
criminal law reform in India, on the legal and political contexts that made codification such a
key element of Macaulay’s vision of colonial governance, and on the relevance of
codification in India to contemporary debates in England. 10 She notes, “[d]espite these
connections, there is a dearth of scholarship on the history of codification and empire and
even fewer “intertwined” histories that place codification in European metropoles and
colonial locales in a unitary field of analysis. 11
As I have argued elsewhere, the IPC was not simply about the more efficient
administration of criminal justice, it was a reform that aimed to modernise British colonial
rule and a manifestation of concerns about the effectiveness and legitimacy of that rule. 12 As
we shall see, while drafted well before the 1857-8 Mutiny, it was belatedly implemented in
its wake. The crisis made codification a legislative priority. The IPC was not simply a
utilitarian inspired mapping and re-ordering of the criminal law to make the basis rules of
public interest and order widely-known and the routine administration of justice predictable.
Beyond effective crime control it also aimed to displace more arbitrary forms of discretionary
authority with a more credible rule of law based authority. It was a project to enhance the
effectiveness of the rule of law in diverse frontier settings and engender greater compliance to
British rule. As we shall see, such matters were pressing those colonies in crisis and crisis in
turn lent urgency to such ambitious legislative projects. The IPC was the first British criminal
code but it was by no means an isolated response and reformers operated within a global
network.
Before moving on to a closer look at the IPC another important imperial context needs
introduction: the highly charged matter of imperial abolition of slavery and the colonial
labour transitions that followed. The historiography on abolition in the British Empire is
extensive, from the imperial measures that ended the slave trade in 1808 (focusing on Africa
and the efforts of Wilberforce, the elder James Stephen and Zachary Macaulay), the renewal
of the abolitionist movement in the 1820’s, led and popularized domestically by religious non
conformists who were also active in missionary work overseas, the precipitating crisis of the
1831 slave insurrection in Jamaica, and the passage of the 1833 imperial legislation that fully
abolished slavery and introduced the temporary transitional apprenticeships for the West
Indies. Legislatively, these efforts were tied up with the struggles against the Tory oligarchy
(entrenched from the time of the French Revolution and led by Wellington), the Whig victory
and passage of the Reform Act, 1832. The abolitionist push for the 1833 Act was led by MP
Thomas Buxton, supported by Thomas Macaulay and Henry Brougham (although after the
8
Hussain, n 4, 3–4
9
ibid., at 4, quoted from J.F. Stephen’s Minute on the Administration of Justice in British India.
10
Elizabeth Kolsky, ‘Codification and the Rule of Colonial Difference: Criminal Procedure in India (2005) 23 Law and History Review, 631
at 635
.
11
Kolsky, ibid, 632; See also Radhika Singha, A Despotism of Law: Crime and Justice in Early Colonial India (Delhi: Oxford University
Press,1998)
12
See B Wright, ‘Macaulay’s Indian Penal Code: Historical Context and Originating Principles’ in Chan, Wright and Yeo, n 2,19; Desmond
Brown and B Wright, ‘Codification, Public Order, and the Security Provisions of the Canadian Criminal Code, 1892’ in Barry Wright and
Susan Binnie, eds., Canadian State Trials Volume 3: Political Trials and Security Measures, 1840-1914 (Toronto: University of Toronto
Press, 2009), 516
5
passage of the Reform Act, the latter two were preoccupied with other reform initiatives,
Macaulay with James Mill at work on the India bill, Brougham preoccupied with setting up
his Criminal Law Commission). Edward Stanley engineered the government’s compromises
with planter interests and James Stephen of the Colonial Office closely supervised the
colonial transition. 13 Traditional interpretations emphasize political reform that empowered
middle class perspectives and the growing popular support for the principled moral
arguments against slavery, while the political economy interpretations introduced by Eric
Williams emphasize the declining important of slavery as industrial capitalism matures. In
recent years more nuanced accounts have emerged, re-examining humanitarian reform in the
context of the reciprocal influences of colony and metropole in identity formation, the
development of engaged popular public opinion, as well as more rigorous studies of overseas
and domestic labour transitions. 14
In terms of the transition following abolition in 1833-4, much of the literature has
continued to focus on the British West Indies, in particular the compromises with planter
interests that gave rise to the temporary transitional apprenticeships for freed slaves, and the
problems of supervision and administration of the apprenticeships. Macaulay had offered his
resignation from the Commons on three occasions over the abolition issue (April 1831 when
it appeared that antislavery measures were not a legislative priority and in May and July 1833
when he opposed the first compromise proposal drafted by Howick and then Stanley’s
successful bill), and he battled Wellington over a clause in the India Charter bill that
explicitly prohibited indigenous practices of slavery. Macaulay agreed to compromise in the
end and supported the imperial abolition act, but like James Stephen, he remained suspicious
of planter cooperation, seeing the compulsory apprenticeships as an unworkable scheme that
continued the oppression of freed slaves. 15
The more substantial and lasting labour transition was the rapid development of an
imperial system of indentured labour, much of it involving the recruitment and transportation
of workers from India. Indentured labour soon became the main form of labour in the British
West Indies sugar plantations, replacing slavery and the ending in 1838 of the special
magistrate supervised apprenticeships of freed slaves. An immense Indian diaspora
throughout the planter colonies of the British Empire commenced, involving 1.3 million
migrant workers from the mid 1830’s to the early 20th century, beginning with Mauritius but
rapidly expanding from 1838 with plantations in Demerara, British Guiana (where 340,000
migrants from India eventually arrived), Trinidad (where 145,00 migrated), Jamaica (where
40,000 migrated) as well as large numbers indentured to tea plantations in Assam and
Ceylon, rubber plantations in the Straits Settlements, and sugar plantations in Fiji. 16 The Anti
Slavery Society criticised the emerging system as a new form of slavery but moral activism
was distracted by concerns about slavery outside British jurisdictions and declining interest
13
Thomas Macaulay had been directly involved with the renewal of abolitionist movement in the 1820’s, assisting his father Zachary with
editing the Anti Slavery Reporter while James Stephen junior at the Colonial Office provided his father with reports for the studies Slavery
in the British West Indies Delineated, published in 1824 and 1830.
14
See for example, William Law Mathieson, British Slave Emancipation 1838-1849 (1926 repr New York 1967) and the original Marxist
influenced revisionist account Eric Williams, Capitalism and Slavery (1944 repr New York 1966). For more recent interpretations see
William A Green, British Slave Emancipation: The Sugar Colonies and the Great Experiment 1830-1865 (Oxford, 1976); David Brion
Davis, The Problem of Slavery in the Age of Revolution, 1770-1823 (Ithaca NY, 1975); Seymour Drescher, Capitalism and Antislavery:
British Mobilization in Comparative Context (New York and London, 1986); Robin Blackburn, The Overthrow of Colonial Slavery 17761848 (London, New York, 1998); Catherine Hall, Civilizing Subjects n.3, 107-113, 328-38
15
16
See Thomas to Zachary Macaulay, 13, 22, 27 July 1833 and 20 September 1833, in Pinney, n.1 vol.2 269-79, 307
David Northrup, Indentured Labour in the Age of Imperialism, 1834-1922 (Cambridge: Cambridge University Press, 1995), 156. See also,
Basdeo Mangru, Benevolent Neutrality: Indian Government Policy and Labour Migration to British Guiana 1855-84 (London: Hansib,
1987) ; Prabhu P. Mohapatra, ‘Assam and the West Indies: Immobilizing Plantation Labour’ in D. Hay and P. Craven eds., Master,
Servants and Magistrates in Britain and the Empire, (Chapel Hill: U of N Carolina Press, 2004), 455; Kay Saunders ed., Indentured Labour
in the British Empire (London: Croom Helm, 1984).
6
and cynicism about conditions in former slave colonies. As we shall see in part three, the
exploitation of contracted workers was made possible by the elaboration of criminal sanctions
in colonial Master and Servant laws and through the powers of magistrates originally
appointed to supervise the apprenticeships. James Stephen, who earlier battled planterdominated colonial governments over amelioration measures for slaves and the
administration of the apprenticeships, attempted to be vigilant in the supervision of indenture
contracts and the colonial government in India attempted to regulate abuses by planter agents
in the recruitment and transportation of workers. Imperial supervision became more sporadic
after the late 1840’s and direct engagement with the issues by the Colonial and India Offices
was sidetracked by the creation of the Colonial Land and Emigration Commission which
acted as arbiter between interests in India and the planter colonies. The indenture system
continued to expand as the main source of plantation labour until the early 20th century. 17
The huge trade in indentured labour from India also suggests a failure in Macaulay’s
own law reforms in India. Imperial abolition did not appear to override local powers outside
East India Company controlled areas or treaties and indigenous slavery practices persisted
until the late 19th century in the autonomous Princely States. And where Macaulay had clear
jurisdiction and relatively unconstrained local legislative influence in British India, potential
obstacles to the rapid development in imperial trade in indentured labour were minimised.
His penal code seemed ineffective in curbing both old and new forms of labour exploitation.
b) Law Reform in the Metropole
The period of the 1820s and 1830s saw wide ranging reforms to English criminal law
and its administration but criminal law codification was never realised, despite its central
place in 19th century law reform debates there. Codes were developed in other British
jurisdictions and Macaulay’s IPC was the first of these. It was the basis for codes enacted in
British colonies throughout South Asia and an important reference point for Robert Wright’s
draft Jamaica Code (1877), a model for those enacted elsewhere in the West Indies and
beyond. Notwithstanding the Law Commission’s recent effort (1968–2008), Fitzjames
Stephen’s Draft English Code, a cautious effort that reflected accommodation with the
common law, was the closest England itself came to codification. The bill died with the fall
of the government in 1880, but Stephen’s draft became the main external reference for the
first wave of British self-governing jurisdiction codes beginning with Canada. 18 The IPC
was not only the first but also came closest of all the nineteenth-century criminal codes to a
practical implementation of Bentham’s ideas. A concise, lucid and comprehensive code that
aimed to minimise discretion, differences in legal status, and concession to local
circumstances. It As K.J.M. Smith observes, the IPC and its antecedents are an important
episode in the development of English criminal jurisprudence and 19th century intellectual
history. 19
Bentham coined the term ‘codification,’ to describe his radical break from the
common law and ambitious legislative agenda based on his ‘science’ of legislation. 20 All
existing criminal laws were to be replaced by comprehensive provisions set out in rational,
consistent and accessible form, anchored in the principles of utility, and amenable to efficient
administration and minimal judicial discretion. Such a code held out the promise of a
‘universal’ jurisprudence, applicable, as Bentham put it, to places as diverse as England and
17
See Ibid as well as the chapters by Banton, Turner, and Anderson in Hay and Craven,eds., n 16.
18
See part 3 below for Stephen and later 19th century codifications throughout the Empire.
19
20
Smith, n 2, 145
‘View of a Complete Code of Laws’, Bentham’s Works, vol 3, 163; also throughout the Bowring edition of his Works and An Introduction
to the Principles of Morals and Legislation (1789)JH Burns and HLA Hart (eds), (London, Athlone, 1970).
7
Bengal. 21 India soon became a colonial laboratory for these ideas, the reorganisation of
colonial government there providing the opportunity for Macaulay to assume the ideal
utilitarian role of an ‘enlightened despotic legislator.’ Soon after Bentham’s death in 1832,
his utilitarian colleague James Mill reconstituted imperial authority in India and Macaulay
assisted with the drafting of the India Charter Act bill and introduced it in Parliament. Soon
after its passage (and the imperial abolition act) Macaulay was appointed to the GovernorGeneral of India’s new Legislative Council. Macaulay’s sweeping law reforms in India
culminated with the drafting of the IPC in 1837. While it was hoped that the colonial example
would inspire codification in the metropole, rationalising reform beyond Peel’s
consolidations stalled. The bar and bench defenders of the common law in the metropole
portrayed codification as alien to English legal tradition but their dismissal of the codification
as foreign, or the work of philosophical radical interlopers unversed in the common law,
neglects its prominence in nineteenth-century English criminal law reform debates. 22 It is
also myopic, ignoring codes enacted in other British common law jurisdictions.
Bentham’s science of legislation and universal jurisprudence developed from his
critique of Blackstone’s Commentaries. His break from his former teacher began with his
1776 Fragment on Government and continued throughout his long life. 23 He acknowledged
Blackstone’s achievement in technical arrangement and lending rational order to English
law. 24 But he concluded that the Commentaries were ultimately ‘an elegant palliative to the
inherently chronic confusion of the common law’. 25 The common law, Blackstone’s
preoccupation, was beyond the reach of rational reform, its arcane nature and needless
complexities the invariable result of random cases and self-serving judges. Blackstone’s
defence of judicial power, based on the incredible claim that judges exercised little discretion
around common-law rules, and his neglect and suspicion of legislation, were nonsense. 26
Blackstone’s modern ordering of the common law was futile and the common law should be
eliminated.
Bentham’s science of legislation, set out in Introduction to the Principles of Morals
and Legislation and elsewhere, called for legislative reformulation of all laws, informed by
21
‘On the influence of time and place in matters of legislation’ (1782) in J Bowring (ed), The Works Of Jeremy Bentham (11 vols)
(Edinburgh, 1838–43, repr New York, NY, Russell & Russell, 1962) vol 1, 169–94. Bentham’s prescient comment about India appears in
vol 10.
22
On the centrality of codification to reform see KJM Smith, Lawyers, Legislators and Theorists: Developments in English Criminal
Jurisprudence, 1800–1957 (Oxford, Clarendon Press, 1998); Smith, James Fitzjames Stephen: Portrait of a Victorian Rationalist
(Cambridge, Cambridge University Press, 1988); also, L Farmer, ‘Reconstructing the English Codification Debate: The Criminal Law
Commissioners, 1833–45’ (2000) 18 Law and History Review 397–400, M Lobban, The Common Law and English Jurisprudence, 1760–
1850 (Oxford, Clarendon Press, 1991). As Farmer points out, the failure of codification is also portrayed as one of the peculiarities of the
English, a divergence from what Max Weber called formal legal rationality, the typical legal forms associated with modern authority.
23
See, eg ‘A Comment on the Commentaries and a Fragment on Government’ in JH Burns and HLA Hart (eds) (London, Athlone, 1977).)
Bentham’s obsession with Blackstone continued for a half century, at age 80 adding 300 manuscript pages of critique; see W Prest (ed),
Blackstone and His Commentaries: Biography, Law, History (Oxford, Hart Publishing, 2009) 63.
24
A Fragment on Government, ibid. W Blackstone, Commentaries on the Laws of England (1765–69) (repr Chicago, IL, University of
Chicago Press, 1979). See Prest ibid on the Commentaries, their significance in generating an understanding of the common law as a system,
and as a formative intellectual influence on modern treatises; also, SFC Milsom, ‘The Nature of Blackstone’s Achievement’ (1981) 1 Oxford
Journal of Legal Studies 1; D Kennedy, ‘The Structure of Blackstone’s Commentaries’ (1979) 28 Buffalo Law Review 205.
25
Quoted in Smith, Lawyers, Legislators and Theorists, n 22, 11; see also discussion at 9–12; R Cross, ‘Blackstone v Bentham’ (1976) 92
The Law Quarterly Review 516. While introducing a continental and Enlightenment era sensibility to the common law, Blackstone did not
transform its inherent inductive approach. The common law as a ‘gothic castle’ is a metaphor favoured by a number of contributors to
forthcoming collection on the 19th century legal treatise, and Blackstone’s project was to renovate and modernize it. I play with this
metaphor in my chapter, suggesting that Bentham regarded the common law castle as a ‘tear down,’ to be replaced by a Georgian villa with
modern conveniences (see B Wright, ‘Renovate or Rebuild? Treatises, Digests and Criminal Law Codification,’ in A. Fernandez and M.
Dubber eds., Law Books in Action: Essays on the Anglo-American Legal Treatise Oxford: Hart, 2012, 181-201).
26
See JH Langbein, ‘Blackstone on Judging’ in Prest, n 23, 65; John V Orth, ‘Blackstone’s Rules on the Construction of Statutes’ in Prest,
ibid 79; HLA Hart, ‘The Demystification of Law’ in Hart (ed), Essays on Bentham: Jurisprudence and Political Theory (Oxford, Clarendon
Press, 1982) 21.
8
the rational principles of utility thought to have universal application. Unlike the treatise,
there would be no looking back, reference to obscure archaic purposes, or attempt to marry
traditional with modern policy objectives. His pannomion, composed of penal, constitutional
and civil codes, aimed for nothing less than the comprehensive regulation of social
relationships and sovereign power. 27 The criminal code occupied much of Bentham’s
attention, in contrast to the relatively minor place of criminal law in the Commentaries, its
neglect in much of the later 19th century treatise literature, and indeed its portrayal as hardly
counting as law at all in historical narratives celebrating the genius of the common law. 28
Criminal law entails vital matters of public policy, liberty and individual happiness. It
regulates key relations between the state and citizens. It is the most commonplace reflection
of the exercise of state power in repressive forms, reflecting its monopoly over the legitimate
use of violence. Punishment entails the deliberate infliction of harm. Such matters demanded
clearer articulation, modern rational justification and could not be entrusted to the courts.
Bentham’s taxonomy of criminal harms, prohibitions and penalties took the
rationalising spirit of the Enlightenment much further than Blackstone. He sought to map out
and categorise the entirety of the criminal law, all offences, forms of liability and defences set
out leaving no terra incognita, in provisions expressed so clearly that an average person
would understand it, an average judge unable to claim not to. Yet Bentham never completed a
working criminal code. 29 And while his criminal institutional proposals were well known, the
transformations in the administration of English criminal law in the 1820s and 30 s were
influenced by complex factors, more a matter of reform consensus between leading Tories
and Whigs than Bentham’s advocacy. 30 As for reforms to the substantive criminal law,
consolidation (collection and update of all statutes), digests (organised presentation of the
law) and yet more comprehensive rationalisations falling short of Bentham’s call were
debated. Peel’s consolidations of 1827–31, which repealed or modernised hundreds of
statutes and scaled back the death penalty from over 200 to a dozen offences, was a modest
rather than transformative advance. It was nonetheless an important one, relatively neglected
by scholars compared to the new police, professionalisation of the criminal trial and the rise
of the penitentiary.
The fall of Wellington’s government opened the door to the possibility of wider
criminal law reform under Henry Brougham. He was unable to match Peel’s political and
legislative skills and Lord Chief Justice Ellenborough’s defence of judicial powers had set the
stage for more aggressive intervention against legislative change. 31 Brougham’s criminal law
commissioners, appointed in 1833 with a mandate to produce a digest of criminal statutes,
27
See Smith, ‘Lawyers, Legislators and Theorists’ n 22, 20, 28–29; Farmer, n 22, 423.
28
See, eg SFC Milsom, Historical Foundations of the Common Law 2nd edn (London, Butterworths, 1981) 403, who states, “Nothing
worth-while was created…The criminal law became segregated as one of the dirty jobs of society.”
29
Outlines for codes and unfinished drafts are scattered though Bentham’s unpublished work and offers to draft went to American
(approaching Aaron Burr, President Madison and most state governors), French and Russian law-makers. Bentham’s legislative ideals
proved elusive. As he elaborated his science of legislation, he struggled with the tension between inductive and deductive logics and the
challenges of crafting specific provisions that accounted for particular circumstances. See note 38 below on Macaulay’s pragmatic response.
On Bentham and the persistence of inductive reasoning in adversarial processes and judicial applications of the law; see Lobban, n 22, 120–
55.
30
Bentham was estranged from the legal profession and judiciary (his disdain for judges was reciprocated) although in 1817 he received an
honorary call at Lincoln’s Inn (where Macaulay was later called). On Bentham’s influence, see, eg SE Finer, ‘The Transmission of
Benthamite Ideas, 1826–1839’ in G Sutherland (ed), Studies in the Growth of Nineteenth Century Government (London, Routledge, 1972);
H Benyon, ‘Mighty Bentham’ (1981) 2 Journal of Legal History 62; R McGowan, ‘The Image of Justice and Reform of the Criminal Law in
Early Nineteenth Century England’ (1983) 32 Buffalo Law Review 89.
31
James Mackintosh’s 1819 committee that paved the way for Peel’s consolidations avoided the judges, and Peel deftly evoked Bacon to
head them off when introducing his bills, but they were routinely consulted on subsequent criminal law reforms; see Smith, Lawyers,
Legislators and Theorists n 22, 56–63, 361, 364.
9
another of common law and to consider combining both, were divided over the scope of
contemplated reform and indulged in esoteric doctrinal and definitional debates. 32 A series of
reports resulted in a combined digest in 1845, followed by more modest reports on indictable
offences, but the 1853 bill based on the latter collapsed in the face of judicial criticism in a
select committee. 33 Few remnants of the commissioners’ work are found in Charles
Greaves’s 1861 consolidation, an update of Peel. Codification was not abandoned but
subsequent efforts were condemned to follow a similar pattern and the project proved more
promising in colonial contexts.
India became a utilitarian laboratory where Macaulay went the furthest of all the law
reformers in exploring the possibilities of Bentham’s scientific legislation and universal
jurisprudence. As we shall see, while it became the most Benthamite code enacted, giving
form and practical content to Bentham’s ideas, and making them work in the context of a
specific time and place, proved difficult. Macaulay confronted the challenges with a
Baconian pragmatism, relying in significant part on a synthesis of existing English criminal
laws. 34
Most early commentary dismissed the IPC as the work of a philosophical radical nonlawyer (Macaulay trained as a barrister and knew Peel’s consolidations well). The more
sympathetic assessments tended to downplay Bentham’s influence, Stephen describing it as
‘the criminal law of England freed from all technicalities and superfluities…’ 35 although he
acknowledged elsewhere, ‘[t]o compare the Indian penal code with English criminal law was
like comparing Cosmos with Chaos’. 36 Much more recently Eric Stokes fully illuminated
Bentham’s considerable influence. 37 Yet there were unresolved issues in his codifying ideas
(tensions between inductive and deductive logics, between the abstract and the situational)
and his precise impact remains difficult to determine. Macaulay wrote a biography of Bacon
while working on the code, and was likely inspired by Bacon in his pragmatic, practical
resolution of the drafting challenges. Here he may have been influenced by Robert Peel, who
quoted widely from Bacon to undercut opposition to his consolidation bills. 38
c) Macaulay and Reform
Macaulay’s assumption of the role and very image of the utilitarian enlightened
despotic legislator, becoming perhaps the most effective utilitarian reformer of his
generation, was surprising. He assisted his father’s work in the abolitionist movement and
contributed to liberal criticism of the ruling Tory oligarchy, practicing briefly as a barrister
before his election as a Whig MP, becoming a leading proponent of Parliamentary reform. He
had not been part of the tight circle of Bentham and Mill disciples, and indeed published
32
John Austin, still Benthamite, quit in frustration in 1836. Andrew Amos followed Macaulay in India, thought the IPC went too far, and
rejoined the commission. Henry Belleden Ker was active throughout and more interested in technical legislative drafting than legal theory;
see Farmer, n 20, 404–5; M Lobban, ‘How Benthamatic Was the Criminal Law Commission?’ (2000) 18 Law and History Review 427.
33
See Smith, Lawyers, Legislators and Theorists, n 22, 136–38; Smith, Stephen, n 22, 75–76.
34
Smith, n 2, 153, puts it similarly, referring to ‘a fusion of utilitarian clarity and rigour with Burkean pragmatism’. This section and part 2
that follows, derives from my more detailed examinations in ‘Macaulay’s Indian Penal Code’ n 12
35
JF Stephen, A History of the Criminal Law of England vol 3 (London, Macmillan, 1883) 300; see also SG Vesey-Fitzgerald, ‘Bentham
and the Indian Codes’, GW Keeton and G Schwarzenberger (eds), Jeremy Bentham and the Law: A Symposium (London, Stevens, 1948)
222; MC Setalvad, The Common Law in India (London, Stevens, 1960).
36
Social Science Association, ‘Mr Fitzjames Stephen on Codification’ (1872–73) 54 Law Times 44 at 45.
37
See Stokes, n 2.
38
See Wright, ‘Renovate or Rebuild,’ n 25. Like Bentham, Macaulay did not resolve the tensions between the universal and the situational.
Aspiring to craft universal laws, Macaulay was obliged to take time and place into account, as even Bentham acknowledged was necessary.
Bacon’s ideas have more affinity with the case by case incremental development of general principles characteristic of the common law than
the principled abstraction of Plato or Cartesian identification of first principles and derived implications characteristic of the Roman-civilian
legal tradition.
10
criticisms of their ideas in the late 1820’s and early 1830s in the Edinburgh and Westminster
Reviews, warning of the threat radical utilitarian legislative reform posed to British liberties.
He was suspicious of the utilitarians’ reductionist view of human nature and radical public
policy proposals, emphasizing that British experience favoured gradualism. These were
themes he developed further in the 1840’s as he turned to writing and historical scholarship,
the ‘Whig theory of history’ as Herbert Butterfield famously described it. 39
Macaulay’s contributions to the Whig’s parliamentary victory and passage of the
Reform Act were rewarded with appointment as Secretary of the Government’s Board of
Control charged with supervising East India Company and Indian public affairs. He became
closely acquainted with James Mill at this time and collaborated closely with him on the
reorganisation of India’s colonial government. In opening debate on the India Charter Act
bill, Macaulay declared, ‘[a code] is almost the only blessing, perhaps the only blessing,
which absolute governments are better fitted to confer on a nation than popular
governments’. 40 After arriving in India as legal representative on the Governor-General of
India’s new Legislative Council, he wrote, ‘I have immense reforms in hand… such as would
make old Bentham jump in his grave…’ 41 His Press Act (1835) ended press licensing and
prior restraint, the Black Act (1836) ended special privileges of European residents in the
civil courts, and his education reforms widened accessibility and modernised curriculum, but
the IPC, which he largely authored, was by far his biggest project. As he started, he wrote to
Mill expressing the hope it would inspire codification at home as Brougham’s commissioners
grappled with the continuing chaotic state of English law. 42
Such were the contradictions of 19th century British liberalism. They were more easily
overlooked in an overseas setting, where the executive powers of colonial government gave
Macaulay wide latitude to experiment with a dramatic reconstituting of legal authority in
what was deemed, under utilitarian premises and imperial policy, to be the general public
good. Macaulay rationalised that while India’s government was not free, the colony would at
least benefit from an impartial and enlightened despotism until that time.
Stokes suggests that Macaulay’s ambivalence about utilitarian political and moral
theories did not extend to Bentham’s legal theory. 43 John Clive’s magisterial biography
focuses on this period of Macaulay’s career and argues that Macaulay participated in the
politics of utilitarian absolutism as a means to an end, to put into effect developments that
would result in freedom and independence at an uncertain future point. 44 A recent biography
by Robert Sullivan explores privileged position and hypocrisies of British liberals and
explores the implicit but fraught psychological conflicts between Macaulay, suggesting that
authoritarianism was implicit in liberal conceptions of Empire. 45 Catherine Hall analysis of
39
H Butterfield, The Whig Interpretation of History, 1931 repr London, Bell, 1950
40
10 July 1833, Parliamentary Debates 3rd Series vol 19
.
41
Macaulay to Thomas Flower Ellis, 3 June 1835 in Thomas Pinney (ed), The Selected Letters of Thomas Babington Macaulay vol 3
January 1834 – August 1841 (London, Cambridge University Press, 1982) 146 (Bentham’s auto-ikon was more likely to cackle from its
perch at University College London).
42
Macaulay to Mill, 24 August 1835, quoted in Clive n 2, 436–38.
43
“He rejected the Utilitarian idea of the general renovation of society by means of an abstract universal theory…Instead he adhered to
expediency and pragmatism, which he dignified with the authority of Bacon’s inductive method…Macaulay accepted Bentham’s
jurisprudence but not the general political theory…” Stokes, n 2, 191-2.
44
Clive, n 2, 467-73. See also Pinney, “Introduction” vii-xi; 112-15. Jennifer Pitts challenges the assumption that Bentham was imperialist
despite his ‘dead legislative of India’remark, attributing it to Elie Helevy’s influential portrayal of Bentham as a deeply authoritarian thinker,
noting that he expressed consistent skepticism of European imperialist ventures and called for self rule--see J. Pitts, ‘Legislator of the
World? A Rereading of Bentham on Colonies’ (2003) 31 Political Theory 200
45
Robert E. Sullivan, Macaulay: The Tragedy of Power (Cambridge Mass: Harvard University Press, 2009)
11
Macaulay’s influential History of England explores similar themes, in particular, the ways
metropole and colonial periphery were portrayed and included or excluded from an emerging
enlightened assimilating British identity. Macaulay famously insulated himself from the
cultures of India, which he found disconcerting, but was also aloof from European expatriate
community. He returned from his sojourn exhausted, depressed (the loss of his father and the
company of his sisters) and on the margins of the London Whig political elite. 46 Hall
suggests that Macaulay’s found India alien and experienced it as disconcerting, eventually
portraying it in his History as a purely commercial venture that would never be absorbed in
the manner of the Scotland or the British settler colonies moving to self-governing Dominion
status. 47
There are dangers in assuming a consistency in perspective, in this case between the
enthusiastic activist, energetically pursuing the possibilities of reform in the laboratory of
India, and the disappointed Macaulay entering middle age, jaded and in crisis perhaps, with a
consequent shift in preoccupations and pursuit of popularising history (combining facts and
imagination as all historians do from the perspective of their experiences and location). There
are yet more dangers in attributing the sweeping consequences of Macaulay’s ideas and
agency as suggested by Sullivan in particular. Macaulay the law reformer of the 1830’s
should not be conflated with Macaulay the historian of the 1840’s.
*
There were larger forces at work around Macaulay’s projects. That Macaulay fell
short of Bentham’s ideals is unsurprising for modern legal theorists, given the insights of the
legal realists about the limits of legislation and persistent judicial tendencies around statutory
interpretation and assertion of common law powers. 48 Unlike Bentham, Macaulay devised
working provisions and the IPC remains the groundbreaking British code, the most
Benthamite in nature and ambition, and many of its qualities remain as progressive law
reform aims in the twenty-first century. 49 At the same time it must be recognised that
Macaulay’s reform did not occur in a vacuum. A product of a particular time and place,
cultural and intellectual context, Macaulay’s premises were informed by the limits of his
experience, outlook and an intellectual milieu of European Enlightenment rationalism and
British liberalism. Nor was the IPC a disinterested initiative, utilitarian and liberal conceits
aside. It was a British imperial policy innovation that responded to concerns about effective
colonial governance and challenges to British sovereignty. The metropole’s political classes
were increasingly concerned about the legitimacy of British colonial rule, its conformity to
constitutional claims, and the legal bases for the exercise of British power. In this respect it is
telling that the delayed enactment of the IPC was sparked by the crisis of the Mutiny. As we
shall see in part three, the IPC became a legislative priority because restoring the semblance
of legality, in a manner that would enhance the effectiveness of the rule of law and minimise
future resort to arbitrary emergency measures or military intervention, became a political
46
Macaulay returned to a senior appointment as Secretary of State for War and Colonies where James Stephen had become Permanent
Under Secretary. It came with an onerous file on the aftermath of the Canadian rebellions and Lord Durham’s report on colonial responsible
and self-government. He retreated from active political life to pursue his interests in history and literature –see Clive, n 2.
47
Catherine Hall, ‘At Home with History: Macaulay and the History of England’ in C. Hall and S.O. Rose eds, At Home with the Empire:
Metropolitan Culture and the Imperial World (Cambridge: CUP, 2006), 32
48
Macaulay sought to shift law-making from the courts to the legislature and limit judges to simple application of the law, but even
Bentham realised that the discretionary powers of judges could not be eliminated (see notes 29 and 38 above). As the modern legal realists
emphasize, legislation is coloured by local and particular influences when adopted and applied in varying settings. Novel situations,
developments and new issues cannot be fully anticipated. Experience shows that the systematic updating required for comprehensive codes
is seldom a legislative priority, and amendment is achieved through ad hoc reactive legislation or by judicial invention, judges unable to
resist overlaying legislation with constructions and inconsistent statutory interpretation. For examples of judicial constructions and
continuing deference to English common law developments in modern IPC jurisdictions see M. Sornorajah, “The Interpretation of the Penal
Codes” [1991] 3 The Malayan Law Journal, cxxix.
49
See chapters in Chan, Wright and Yeo, n 2. This assessment of the durable qualities of many aspects of the IPC is shared by Smith, n 2.
12
priority. Colonial crises prompted ambitious law reforms and legal practices that better
conformed to British constitutional claims and would engender, it was hoped, greater
compliance to British rule. In a similar fashion crises led to the Jamaica draft and prefaced
the codes of the 1890s.
2. The India Penal Code
A law commission headed by Macaulay to examine a uniform system of law
(envisaged by s 53 of the Charter Act and Mill’s December 1834 despatch on its
implementation) was created by the India Legislative Council in May 1835, and its mandate
to codify the criminal law was approved the following month. A full draft, largely authored
by Macaulay, was presented to Governor General Auckland in May 1837 and formally
submitted along with Commissioners’ final report to council on 14 October 1837. 50 The main
features of the code are surveyed here along with a more detailed analysis of the labour
related provisions. The events that eventually resulted in its enactment in 1860, including the
criticisms and endorsements of the Indian Law Commissioners, 1846-8, the selection of
Macaulay’s draft over a rival proposal from Drinkwater Bethune, and the recommendations
and revisions of the Commission in the 1850’s led by Sir Barnes Peacock, are very briefly
examined in the concluding part of this section. 51
Macaulay rejected mere consolidation, arguing for a comprehensive code to replace
the existing patchwork of Muslim and Hindu laws overlaid with received English criminal
laws and East Indian Company regulations, and a singular standard of justice for all. 52 His
4 June 1835 Minute to Council presented his law commission’s codifying principles
(paraphrased here):
•
It should be more than a mere digest of existing laws, cover all contingencies,
and nothing that is not in the code ought to be law.
• Crime should be suppressed with the least infliction of suffering, and allow for
the ascertaining of truth at minimal cost of time and money.
• Its language should be clear, unequivocal and concise. Every criminal act
should be separately defined, the language followed in indictment, and conduct
found to fall within it.
•
Uniformity is the chief end; special definitions, procedures or other exceptions
to account for different races or sects not included without clear and strong
reasons. 53
50
See British Parliamentary Papers (BPP), ‘Copy of the Penal Code Prepared by the Indian Law Commissioners and published by
Command of the Governor-General of India in Council’ vol 41, 1837–80, 463–587 (paper no 673 Return of the House of Commons, 30 July
1838). Macaulay’s fellow commissioners succumbed to the heat and illness, although commissioner John Macleod did the most to keep the
draft in official view after Macaulay’s return to India. He testified in 1848, “I may state a fact already generally known when I say that Mr.
Macaulay is justly entitled to be called the author of the Indian Penal Code.” Notes on the Report of the Indian Law Commissioners on the
Indian Penal Code (London, 1848) vi.
51
Smith’s succinct overview (see n 2) is difficult to improve upon. Older positive assessments begin with John Stuart Mill (1838) XXXI
Westminster Review, 395 and James Fitzjames Stephen’s close study-see History, Vol III, n 35, 283. See also, S.G Vesey-Fitzgerald,
“Bentham and the Indian Codes” in G.W. Keeton and G. Schwarzenberger eds., Jeremy Bentham and the Law: A Symposium (London:
Stevens, 1948), 222 and M.C. Setalvad., The Common Law in India (London: Stevens, 1960). Modern assessments that examine the IPC
from the perspective of rights, cultural heterogeneity and colonial rule debates, include Vasudha Dhagamwar, Law, Power and Justice: The
Protection of Personal Rights in the Indian Penal Code (New Delhi: Sage, 1992), Kolsky, n 10; and Radhika Singha, A Despotism of Law;
n 10, and “No Needless Pains or Unintended Pleasures: Penal Reform in the Colony, 1825-45 (1995) 11 Studies in History, 29
52
Applicable criminal laws included Muslim (Bengal, Madras and other parts of the north, east and south) and Hindu laws (Bombay),
overlaid with East India Company regulations, while European residents were governed by received English laws, on the basis of the 1773
Regulating Act which established a Supreme Court in Calcutta and confirmed English criminal law in effect in 1726 was binding on all
Calcutta residents and European residents throughout India, amended in 1828 with adoption of Peel’s first consolidations.
53
See Wing Cheong, Wright and Yeo, n 2.
13
These codifying principles of comprehensiveness, accessibility and consistency are a
practical rendition of Bentham’s legislative aspirations, and indeed, Macaulay’s presentation
of law in the resulting draft is a radical break from existing English laws. The substantive
doctrines are less so. The provisions are accompanied by Examples illustrating their
application to hypothetical cases. Explanatory Notes, which disappeared from the enacted
version of the IPC, criticise existing English laws and discuss the conceptual features of key
provisions. Macaulay’s debt to Bentham is more discernable in conception (drafting
principles) and presentation rather than in doctrinal details. The latter derive from existing
laws, modernised but not reinvented, falling short of Bentham’s call to legislate anew.
a) Overview of Provisions:
The IPC is a comprehensive presentation of criminal law, a full taxonomy that
precludes the common law, and very different in form from existing British legislation.
Macaulay fully embraced Bentham’s extension of logic of classification in the natural
sciences to law, aiming for a systematic and exhaustive statement of criminal harms and
attendant prohibitions, liability standards and penalties (maximums) expressed precisely and
consistently. Following Bentham’s principles of ‘nomography’, Macaulay devised concise,
direct legal expression, characterised by simplicity, clarity, economy and lack of technicality,
within a rationally organised and self-contained legislative whole. 54
Accompanying the radical Benthamite inspired departure in form from existing
English laws were Macaulay’s illustrative Examples, designed as authoritative precedents set
by legislators rather than judges, aiming to exhibit a provision’s entire meaning and range of
application as well as minimise the possibilities of judicial discretion. Bentham contemplated
the device and Edward Livingston’s draft Louisiana penal code included illustrations, 55 but
the technique was rejected by the English Commissioners (Fourth Report, 1839) and in
Wright’s Jamaica draft. 56 Clive notes that drafting the IPC honed Macaulay’s expressive
skills as a writer and historian, drawing parallels between the challenges faced by legislators
and historians of capturing both the particular and the general. Examples were generated out
of subjecting draft definitions to hypothetical exceptions; if doubts or uncertainties were
raised, they were accommodated in revisions to sharpen expression, logical distinctions,
comprehensibility and perspicuity. 57
Macaulay’s Notes, which did not accompany the enacted IPC, constitute a succinct
treatise on English criminal law in the 1830s. 58 Incisive critique of existing English laws
dominates the text and Macaulay takes obvious delight in pointing out common-law
absurdities. But the basic doctrinal ideas build from a background he knew best, Peel’s
English consolidations, peppered with occasional explicit reference to the 1810 French Code
penal and the 1826 draft Louisiana code. 59 The combination of critique and concise
54
See Stokes, n 2, 230. As Stephen, (History, vol 3, note 35, 302–3) put it, ‘The Penal Code was the first specimen of an entirely new and
original method of legislative expression … In the first place the leading idea to be laid down is stated in the most explicit and pointed form
which can be devised. Then such expressions in it as are not regarded as sufficiently explicit are made the subject of definite explanations.
This is followed by equally definite exceptions…’
55
Stokes, n 2, 230.
56
On the basis that complete expression of a provision rendered illustration unnecessary, see Smith, Lawyers., Legislators and
Theorists, n , 151-2
.
57
Clive, n 2, 461–62. Macaulay’s method here is analogous to the approach to synthesis in the modern treatise, although the objective is
prescriptive rather than descriptive, and his approach results in more economical expression of the law than the more unwieldy, typical
treatise formulations see Wright, ‘Renovate or Rebuild’ n 25, 191
58
I argue (Wright, Ibid., 192) they warrant recognition as one of the most interesting and critical examples of the 19th century treatise.
59
The Notes do not make precise attributions; there are oblique references to Peel, more to Bentham, and about a dozen to the French and
Louisiana codes. The 1810 French code derived from the revolutionary 1791 codification, inflected with utilitarianism by Jean-EtienneMarie Portalis. Edward Livingston’s Louisiana draft was ,influenced by Bentham and Portalis. Early or ante bellum codification in the US is
seen by some as an extension of the Revolution, a means of breaking from the continuing influence of English legal tradition, see, eg CM
14
explanation reflects Macaulay’s historical sensibilities and skills at theoretical and technical
synthesis, but Stokes observes that the separate appearance of the rationales for the laws was
a departure from Bentham’s legislative method. 60 It is a revealing departure, suggesting the
significant place of existing laws as Macaulay’s starting point and primary reference.
The substantive provisions are a departure from Bentham’s injunction to reformulate
and legislate the criminal law entirely anew, reflecting strands of liberalism other than
utilitarianism. The Notes suggest they derived mostly from what Macaulay was familiar with,
English laws reworked, simplified and modernised according to more general liberal
sensibilities. Offences are accompanied, where relevant, by specified exemptions (the
Macaulayan term for defences). Most are progressive for the time, indeed a number of the
original provisions remain more advanced than current criminal laws in most common-law
jurisdictions. Principles of liability are not defined in a general part but there is consistent
attention to fault requirements and terms, emphasis on subjective standards, with occasional
use of lesser standards of rashness (the Macaulayan term for recklessness) and negligence for
endangering offences or where public duties were specified. Offences are accompanied,
where relevant, by specified exemptions (defences). The IPC as originally drafted rejected the
English doctrines of constructive liability and attempts to infer mental state from the act,
including the arcane notion of malice aforethought.
The arcane English laws of murder and theft are thoroughly reconstituted. Political
offences reflect a libertarian orientation, reflected in Macaulay’s narrow definition of treason,
effective abolition of seditious libel. He develops new forms of criminal liability for abuse of
state and official powers, matters largely left to parliamentary privilege or unaddressed in
English criminal law. Values reflecting Macaulay’s Clapham sect background are more
apparent in his doctrinal innovations around the exploitation of vulnerable groups (women,
children and labourers) as well as his expansion of liability for endangering and intangible
harms. The replacement of the common law offence of blasphemy anticipates modern
cultural denigration measures and compromises the Benthamite aspiration of universal
jurisprudence in concession to particular time and place. Macaulay recognized cultural
pluralism but sought to prevent proselytizers from exploiting religious tolerance to
intentionally insult what others hold sacred, noting, “[t]here is perhaps no country in which
the Government has so much to apprehend from religious excitement among the people.” 61
Macaulay’s scheme of punishment reflected his Clapham sect humanitarian reformism as
well as a utilitarian logic of deterrence, certainty and proportionality: capital punishment is
limited to two offences (treason narrowly defined and premeditated murder --Peel’s dramatic
reduction was to a dozen offences) and corporal punishment is abolished. 62
b) The Labour Related Provisions
The main elements of the IPC concerned with labour exploitation include Macaulay’s
strict limiting of exceptions (defence) for masters’ liability for offences, wrongful restraint
provisions in offences to the body, and his limiting of penal sanctions for breaches of
contract. Macaulay’s provisions here, as they related to slavery and indentured labour, were
modest compared to his other doctrinal innovations, and probably coloured by his
assumptions about the enforcement of imperial abolition. They nonetheless caused unease
Cook, The American Codification Movement: A Study of Antebellum Legal Reform (New York, NY, Greenwood, 1981) In the post bellum
period David Dudley Field became the most prominent 19th-century American codifier, his 1881 New York State Code best known outside
the US; see Sanford Kadish, ‘Codifiers of the Criminal Law: Wechsler’s Predecessors’ (1978) 78 Columbia Law Review 1098; ‘The Model
Penal Code’s Historical Antecedents’ (1988) 19 Rutgers Law Journal 521.
60
Stokes, n 2, 229–30 notes that Livingston, following Bentham, had attempted to weave rationales into provisions with unwieldy results.
61
BPP, note 50, Note J.
62
For a further discussion of the substantive provisions and cross-references to the Notes, see Wright, n 12 (see also Smith, n 2 from 158).
15
amongst British officials in India and the East India Company, and the issues became matters
of protracted debate in subsequent related legislation and reviews of the IPC.
The IPC deals with slavery by way of restricting defences based on property rights 63
and refusing exceptions from liability and punishment for masters committing any offence
against slaves. 64 In Note B Macaulay expressed his opinion that the practical effect of this
would be the abolition of slavery in British India. Reliance on the 1833 imperial act may have
led him to be overly-sanguine about need for explicit declaration against slavery or the sale of
persons in the draft. While expressing the view that the law, as the Commissioners proposed
to frame it, would effect great practical change he doubted whether separate legislation
specifically abolishing slavery would have similar practical effect, although he conceded that
more specific penal provisions might prove necessary:
Our belief is that even if slavery were expressly abolished, it might, and
would, in some parts of India still continue to exist in practice. We trust,
therefore, that his Lordship in Council will not consider the measure which we
now recommend as of itself sufficient to accomplish the benevolent ends of
the British Legislature, and to relieve the Indian Government from its
obligation to watch over the interests of the slave population. 65
Indeed, in 1860 the enacted IPC added five sections dealing with slavery and the sale of
persons. 66 The provisions did not make existing slavery an offence or abolish its practice but
punished any transaction in slaves. The laws here were the result of compromises that
reflected tensions between the central and provincial governments, as well as continuing
differences between utilitarian abolitionist activists and conservative orientalists who argued
that Indian practices were mild and that more aggressive measures would incite revolt by
landowners and allies. As a result, slavery continued in India until the late 19th century,
decades after imperial abolition. 67
In addition to assaults and similar physical offences against the body, for which
masters were fully liable, the provisions most pertinent to labour exploitation were wrongful
restraint, confinement, abduction, sale and kidnapping (chapter XVIII, clauses 254-362). In
Note M Macaulay suggested that these clauses were sufficient to deal with the enslaving or
carrying away of adults within British India, but added with reference to clauses 354 and 358:
We also propose to enhance the punishment of kidnapping in cases in which it
is committed with the intention …of reducing that person to slavery…We
have placed under this head a provision for punishing persons who export
labourers by sea from the Company’s territories, in contravention of the Act
recently passed by the Government on that subject. 68
63
Self defence and defence of property were dramatically reconstituted as a “private defence” –Cheah Wui Ling, “Private Defence” in Chan,
Wright and Yeo, n 2, 185.
64
“We recommend that no act falling under the definition of an offence should be exempted from punishment because it is committed by a
master against a slave” see Note B “On the Chapter of General Exceptions,” BPP, n 50, 83
65
Ibid, 85
66
Sections 370, 371 offence to import, ex-port, remove, buy, sell, hire or otherwise dispose of a person as a slave; sections 372, 373, an
offence to deal with minors in a same manner for any unlawful or immoral purpose; section 374 an offence to unlawfully compel a person to
labour against his will (Act XLV, 1860)
67
These arguments were originally articulated by Wellington during the Lords debate on the 1833 Charter bill. See Dhagamwar, n 51 and n
96 below.
68
Note M “On Offences Against the Body,” BPP, n 50, 107-8. Clause 354 included as kidnapping offence, “whoever conveys beyond the
limits of the territories of the East India Company or takes on board of any vessel with intention of conveying any person without the free
and intelligent consent of that person, or of some person legally authorised to consent on behalf of such person, or with such consent, but
knowing such consent has been obtained by deception or concealment as to the place of destination or the future treatment of that person is
said to kidnap that person from the territories of East India Company.” Clause 358 includes persons “being in charge of any vessel, [who]
16
The legislation Macaulay referred to was Act V 1837, soon supplemented by Act XXII and
yet further legislation passed in 1839, consolidated under the 1844 Indian Emigration Act.
This separate legislation was designed to regulate the rapid expansion of recruitment and
emigration of Indian labourers by agents acting on behalf of planters in Mauritius and the
West Indies. It stipulated the conditions under which labourers could be shipped from the
territories of the East India Company, required recruiting agents to register contracts of
service with government agents, and set out terms for such contracts (five years, renewable
for the same term and plantation owner responsible for return passage). Provisions were
added to enable government agents to board ships and check conditions on them, confiscate
ships and punish operators who smuggled or contained concealed labourer.
Extra territorial powers were added to protect British subjects from India to ensure due
performance of the contract. 69
However, this Indian regulation of the growing trade in indentured labour, combined
with imperial supervision from the Colonial Office constitutes only half the picture. External
protective supervision was contradicted by the wide reliance on penal sanctions in contracts
of employment, expanded in the master and servant laws in India and planter colonies just as
criminalised master and servant laws were curbed and abolished in the metropole. In Note P
Macaulay declared, “[w]e agree with the great body of jurists in thinking that in general a
mere breach of contract ought not to be an offence, but only subject of a civil action.” 70 Yet
he backed away from recognizing full equality of status in contracts of employment, and the
Government in 1837-8 had even contemplated passing legislation to make it a criminal
offence for domestic servant to leave their masters without notice. 71 The Commissioners
expressed concern about the physical and financial vulnerability of masters and duplicity of
servants, illustrated by case of European women and children journeying long distances
through dangerous lands. Thus baggage carriers and seamen whose insubordination could
produce fatal consequences could be subject to criminal punishment for breach of contract
(clauses 463, 464). As the IPC was reviewed there was considerable pressure to extend
criminal sanctions to all menial servants, but Macaulay’s provisions were only slightly
modified and expanded modified in the enacted 1860 version. 72
Expressions of freedom of contract were largely rhetorical as Michael Anderson
notes. Apart from the restrictions on slavery, ameliorative factory legislation, and supervised
recruitment system for plantations, the late 19th century Indian colonial state relied heavily on
punitive elements of master and servant laws in both plantations and industries, retaining
criminalization a half century longer than in England. The Workmans Breach of Contract Act,
1859, designed to give employers closer control over labourers who absconded or refused
work after being given advances, accompanied the punitive provisions set out in the IPC.
Employers who deliberately broke a contract were only liable for civil damages but labourerd
who persisted in a breach despite a magistrate’s order could be punished with fines or
imprisonment of up to three months with hard labour. And in practice it was almost
knowingly suffers any person who cannot, without a certain order or permit, legally embark on board such vessel for any place which is not
within the territories of East India Company, to embark on board such vessel for any such place.”
69
70
71
72
See Dhagamwar, n 51, 105; Mangru n 16.
Note P On the Chapter of the Criminal Breach of Contracts of Service,” BPP, n 50, 115
Dhagamwar, n 51,106
Michael Anderson, ‘India, 1858-1930: The Illusion of Free Labor’ in Hay and Craven, n 16, 422 at 429-30. Sections 490, 491 and 492
related to service during voyages generally and failure to attend to needs of helpless persons. A new provision introduced punishment for
breach of contract to serve at a distant place that the servant was conveyed at the master’s expense. This section 492 related to the
indentured labour system to protect masters who paid migration costs.
17
impossible for servants to bring civil actions but easy for employers to complain to nearest
magistrate for police assistance in to deal with labourers. 73 As Anderson puts it:
Penal contracts were enforced against a colonized population with minimal
political influence, whose members were viewed through racial categories.
The juridical image of Indian unskilled labour emphasized recalcitrance,
irresponsibility, and laziness—the qualities derived from class-race
stereotypes. These descriptive characteristics justified and made sense of the
penal prescription …the Indian worker was understood to be dependent,
illiterate, and unable to fully grasp his or her legal obligations. Such a person
could not be a fully free actor and, hence, could not enjoy full legal capacity. 74
As we shall see in the next section, local master and servant laws in other colonies extended
wide disciplinary control over indentured labourers, supported by the powers of the local
magistracy. While recruitment and transportation in the indenture trade was regulated and
supervised, and some British appointed senior judges and governors confronted the local
administration of justice and colonial legislatures, the criminal controls around labour
contracts were highly effective in facilitating the exploitation of the migrant workers.
*
John Stuart Mill praised the IPC in the Westminster Review echoed Macaulay’s hope
that his code would inspire stalled English efforts (or as Kolsky puts it, “that modernity in
the colony would ‘re-act’ upon the metropole”), 75 but his IPC encountered what Smith
describes as “the great dead weight power of governmental and administrative inertia…” 76
Utilitarian reform was compromised by military and commercial pressures and orientalism
persisted in British colonial policy. Evangelicals objected to Macaulay’s replacement of
blasphemy by a modern cultural denigration offence, and condemned him as ‘churchwarden
to the idol.’ Macaulay’s Benthamite inspired abolition of common law was denigrated by the
bar and bench in both the metropole and colony. Subsequent legal appointees criticised or
dismissed the draft. Perhaps most significantly, European residents in India objected to
Macaulay’s dismantling of legal privileges and the code’s emphasis on equal legal status
under the criminal law, a conflict that culminated in the Ilbert bill controversy and the ‘white
mutiny.’ 77
The 1857–58 crisis restored the code as a legislative priority, as Stephen noted,
“[t]hen came the Mutiny which in its essence was the breakdown of the old system…The
effect of the Mutiny on the Statute Book was unmistakeable…” 78 Despite criticism of
Governor-General ‘clemency’ Canning, the revolt and its suppression underscored how resort
to martial law and the courts martial of civilians had become increasingly controversial for
the English political classes from the time of the Irish and Canadian rebellions, a crisis of
73
74
75
Ibid, 431
Ibid, 454
(1838) 31 Westminster Review 395; Kolsky n 10, 633.
76
Smith, n 2,160. See also, Smith, Stephen, n 22, 126–31; Stephen, History vol 3, n 35, 299–300; Stokes, n 2, 262; Dhagamwar, n 51, from
77.
77
On Ilbert and ‘the white mutiny’ see n 79 below. Auckland wrote to Hobhouse in summer of 1838, detailing objections from the bar and
bench in Madras and missionaries, who drafted a memorial against provisions prohibiting interference with religious freedom. Auckland
delayed wider circulation of the IPC to judicial and administrative branches until late 1839 and Macaulay’s successor Amos neglected the
law commission was preoccupied with maintaining direct influence on council and was critical of divergences from the work of Brougham’s
English Law Commission. On the reception of Macaulay’s draft, from his successor Andrew Amos to the Reports of the Indian Law
Commissioners (1846, 1847), Drinkwater Bethune’s critique and alternative proposal , the House of Lords Select Committee
recommendations (1852), and final revisions by Barnes Peacock see Dhagamwar, n 51, 77-85; Clive, n 2, 463
78
Quoted in Setalvad, n 51, 124.
18
colonial legitimacy that would soon again be replayed during the Eyre controversy in
Jamaica. Such responses undermined the legitimacy of British rule and associated formal
claims of constitutionalism and the rule of law. Enactment helped to address such concerns
and would, it was hoped, minimise future need to resort to emergency military expedients to
restore public order and uphold imperial rule. Revisions to Macaulay’s original draft were
finalised in 1858, and the IPC was enacted in October 1860, with retrograde amendments that
eased the Benthamite tone of Macaulay’s draft marked a partial return to prevailing English
doctrines, as well as reflecting European resistance to the idea of equal legal status with
indigenous subjects. 79 In the metropole the IPC tended to be dismissed, regarded as suitable
only for backward overseas colonies where it was necessary ‘to keep things simple for the
native population and magistrates of limited ability’. 80 Such was the depth of the hostility of
the established English bar and bench, the self appointed guardians of the common law and
English legal culture, that the Law Times obituary for Macaulay read:
[H]is code is … wholly worthless … [with] scarcely a
definition that will stand the examination of a lawyer or layman
for an instant, and scarcely a description or provision through
which a coach and horses may not be driven. All hope of
Macaulay as a lawyer, and also as a philosopher was over as
soon as his code was seen. 81
3. Criminal Law and Labour Legacies
Although utilitarian hopes that the IPC would inspire stalled criminal law reform
efforts in the metropole were to be disappointed, Macaulay’s codification had rather more
impact on reform elsewhere in the Empire. The IPC was followed by Robert Wright’s
Jamaica code, and codes enacted in Canada (1892), New Zealand (1893) and Queensland
(1899). Fitzjames Stephen, son of James Stephen, who had been an Indian law commissioner
after enactment, did draft modest English criminal code, and his 1880 Draft English Code bill
came closest to domestic success. Macaulay’s law reform legacy was a mixed one, but most
significantly for our purposes here, the IPC and related legislation did little to constrain the
exploitation of labour in India or the emergence of an imperial system involving indentured
workers from India.
a) Criminal Law Reform in England and the Empire:
Macaulay’s successors in India were prominent figures in later nineteenth-century
English legal theory circles, from Andrew Amos through to Henry Maine and Fitzjames
Stephen. 82 In England it had become obvious that Bentham’s injunction to reformulate
criminal law entirely anew was no longer feasible and reform proponents of codification
proceeded with much more caution. Professional and judicial resistance to ambitious
legislative reform solidified and defences of the common law became more aggressive. The
utilitarian critique was deflected by procedural reforms and appeals, scholars such as Maine
79
The IPC did not take effect until 1862, further delayed until passage of criminal procedure legislation that retreated from Macaulay’s aim
of equal status. The procedures clarified that Europeans residents were not obliged to appear before Indian judges and magistrates and the
jurisdictional autonomy of the Princely states. Henry Maine, Stephen’s immediate predecessor as law member of council (1862–69)
objected to the code’s Benthamite hue, claiming ‘nobody cares about criminal law except theorists and habitual criminals’ (quoted in Smith,
Stephen, n 23, 127). Stephen added more procedural changes and an evidence act in1872, while Courtney Ilbert’s attempt to restore
Macaulay’s aim of uniform criminal jurisdiction sparked the 1883) ‘white mutiny’; see Kolsky, n 10, 673–82.
80
G Parker, ‘The Origins of the Canadian Criminal Code’ in DH Flaherty (ed), Essays in the History of Canadian Law vol 1 (Toronto:
University of Toronto Press, 1981) 251.
81
7 January 1860, 184.
82
Smith, Lawyers, Legislators and Theorists and Stephen, n 22 map these connections. For a more detailed examination of later criminal
law reform and codification efforts and their relationship to the treatise see Wright, n 25.
19
and Maitland enhanced the modern legitimacy Blackstone lent to the common law, and
treatises prompted more sophisticated criminal law. The legal positivists, figures such as John
Austin, sought to render Bentham’s legacy more palatable, finding common cause with the
more conservative legal scholars as law emerged as an academic discipline accompanying
modern professional legal education.
Fitzjames Stephen, who praised but helped tame the IPC, led domestic codification
efforts in the latter half of the 19th century. Bentham’s injunction to reformulate criminal law
anew was abandoned in favour of proceeding from existing laws in a treatise-inspired
synthesis, a rationalisation that was only loosely utilitarian and reflected Stephen’s
conservative political and social inclinations. No philosophical radical, wary of conceptual
abstraction though interested in speculative jurisprudence and the work of Austin and Maine,
he had a much more positive view of the common law and judicial discretion than Macaulay
and Bentham. Stephen’s Draft English Code preceded by his treatise A General View of the
Criminal Law of England (1863) and A Digest of the Criminal Law (1877), important steps to
what was in Benthamite and Macaulayan terms a cautious codification of indictable offences
that left defences and the principles of liability to the common law. His 1878 draft English
code derived largely from his Digest was taken up by the government and a commission
converted it into a bill, introduced in 1880. The bill died with the fall of the government on
the Irish question, the closest England and Wales ever came to codification despite
subsequent efforts, including the most recent one by the Law Commission (1968-2008). 83
The Macaulay and Stephen codes are very different, the former aspiring to break
decisively from the common law, the latter seeking accommodation with it. The prospects of
codification were better in other British jurisdictions, including those that enjoyed increasing
responsibility and self-government and where Stephen’s code became a primary external
reference. 84
In India retrograde changes to the IPC continued apace after enactment, and in most
cases, after adoptions elsewhere in British India and independence as well. 85 The Colonial
Office had promoted the IPC for other colonial settings, 86 and it was adopted in Ceylon and
the Straits Settlements and some African colonies, and inspired William Badgley’s 1850
proposed code for the Province of Canada. 87 The 1865 Jamaican uprising and Governor
Eyre’s controversial response prompted the Colonial Office to commission Robert Wright to
revise the IPC for other colonial settings. 88 The Jamaica Code, 1877 was not enacted,
83
See Smith, Stephen,n 22, esp. 44–72. On the most recent efforts see Chris Clarkson, ‘Recent Law Reform and Codification of the General
Principles of Criminal Law in England and Wales: A Tale of Woe’ in Chan, Wright and Yeo, n 2, 337; ‘RIP: The Criminal Code (19682008)’ Editorial [2009] Crim.L.R. 1
84
See ML Friedland, ‘R.S. Wright’s Model Criminal Code: A Forgotten Chapter in the History of the Criminal Law’ (1981) 1 Oxford
Journal of Legal Studies 307; Friedland, ‘Codification in the Commonwealth: Earlier Efforts’ (1990) 2 Criminal Law Forum 145; Barry
Wright, ‘Criminal Law Codification and Imperial Projects: The Self Governing Jurisdiction Codes of the 1890’s’ (2008) 12 Legal History
19.
85
See n 79 above. On the continuing changes to the code in IPC based jurisdictions, the low legislative priority of systematic updating and
ad hoc reactive legislative amendments, inconsistent judicial interpretation and added common law inspired constructions and complexities,
see Chan, Wright and Yeo, n 2
.
86
See Colonial Office circulars, eg ‘Some Considerations Preliminary to the Preparation of a Penal Code for the Crown Colonies’ and Sir
Henry Taylor’s treatise (later appended to Wright’s Jamaica draft), ‘Subjects Affecting Colonies Generally, Confidential Print,’ 20 May
1870, National Archives (UK) CO 885/3/19.
87
See G Blaine Baker, ‘Strategic Benthamism: Rehabilitating United Canada’s Bar through Criminal Law Codification, 1847-54’, J Phillips,
R McMurtry and J Saywell (eds), Essays in the History of Canadian Law Vol. 10: A Tribute to Peter N. Oliver (Toronto, ON, Osgoode
Society, 2008) 257.
88
See Kostal, n 4, Friedland, ‘R.S. Wright’ n 84. Influenced by the English Law Commissioners, Wright’s code differed from the IPC in
attempting to defined liability standards in a general part and abandoning Macaulay’s use of examples. For the differences between Stephen
and Wright see Smith, Lawyers, Legislators and Theorists, n 22, 151-52.
20
although versions were adopted elsewhere in the West Indies and further afield. 89 The
conditions were favourable for codification in self-governing jurisdictions emerging from
colonial status. The complexities of received English criminal laws and subsequent local
amendments were compounded by the emergence of new colonies out of the territories of
older ones (eg, Upper Canada from Quebec, New Brunswick from Nova Scotia, Victoria and
Queensland from New South Wales) and by colonial union (Upper and Lower Canada, 1840,
prefacing the larger challenge faced by the Dominion of Canada in 1867). 90 Consolidations
had simplified the accumulated layers of law and codification appealed as a logical next step,
a complete, succinct and portable compendium of criminal law attractive to a bar and bench
more distant from the culture of the common law, faced with formidable practical challenges
accessing sources of law. 91 Receptiveness to codification was also enhanced by local
struggles for responsible government and criminal law reform, informed by experiences of
abuse of executive powers in colonial government and the administration of justice.
Codification was associated with constraint on state powers and self-government, giving it a
constitutional momentum lacking in England itself. 92 While these jurisdictions were
unreceptive to imposed codes written by imperial administrators promoted by the Colonial
Office, Stephen’s Draft English Code was not burdened with such colonialist baggage. His
modest, pragmatic approach was loose enough in conception to combine easily with local
consolidations and local developments could be accommodated. Stephen unsurprisingly
became the primary external reference for the Canadian (1892), New Zealand (1893) and
Queensland (1899) codes. 93 As was the case with the IPC’s enactment and the drafting of the
Jamaica Code, crisis lent urgency to these big legislative projects. 94
b) The Criminal Regulation of Indentured Labour
The 1833 imperial India Charter and Abolition of Slavery Acts and Macaulay’s
refusal of exceptions for masters’ liability for offences and subsequent addition of slave
trading offences in the IPC did not end slavery in India which persisted in residual form to
the late 19th century. 95 The larger problem of labour exploitation was the growth of the trade
in indentured labour from India. As we have seen, the modest provisions in the IPC on
unlawful restraint anticipated the colonial government’s regulations of the emerging system
of recruitment and trade in separate legislation in 1837. Macaulay’s retention of limited penal
sanctions in employment contracts, opposed in principle but seen as necessary for conditions
in India, was the very same pretext embraced by the local legislatures in the planter colonies.
The perceived labour requirements for reliable and economically viable plantation production
89
After a false start on a replacement for Wright by Fitzjames Stephen’s son Henry, Samuel Griffith’s 1899 Queensland Code had wide
influence, including Albert Ehrhardt’s 1925 Colonial Office model code; see R S O’Regan, ‘Sir Samuel Griffith’s Criminal Code’ (1991) 7
Australian Bar Review 141.
90
Calvin’s Case (1608) 77 ER 377 and imperial instructions governed informal reception. English criminal laws tended to be formally
received as the foundation of a jurisdiction’s criminal laws when representative legislative institutions and colonial courts were first
established, empowered to amend these laws as conditions required, subject to imperial supervision (Colonial Office review of legislation
and possible disallowance, appeals for the Judicial Committee of the Privy Council after 1833, imperial legislation)
91
See D. Brown, The Genesis of the Canadian Criminal Code of 1892 (Toronto: University of Toronto Press, 1989), 42, 71.
92
See, generally, Brown ibid; Brown and Wright, n 12, Wright, n 84. On England see Smith, Stephen, n 22, 83-84; Farmer, n 22, 423-24.
93
Stephen’s renderings of the common law were usually adopted, while most statutory-based provisions derived from local consolidations.
His narrow conception of codification and retention of common law characterise the Canadian and New Zealand codes, and while most of
Samuel Griffith’s external references are to Stephen, his more comprehensive approach, inspired by Zanardelli’s 1889 Italian Code,
resembles the Macaulay and Wright codes -see Wright, ibid.
94
For Canada, see Brown and Wright, n 12. New Zealand’s project started in 1883 during resistance to Maori land confiscations and
indefinite detentions and a draft was completed before Canada’s, but legislative difficulties delayed enactment to 1893. Queensland’s code
was prefaced by a general strike, emergence of the Labor Party and perceived threats to federation; see Wright, ibid.
95
See Dhagamwar, n 51 , 118-22, 161-79, 208-9
21
justified elaborated criminal sanctions in the form of master and servant laws that historically
governed contracts of employment, effectively enforced by local magistrates. The expansion
and refinement of criminalisation was geared to the control and discipline of migrant
workers. 96
Despite Macaulay’s involvement with the 1837 indentured labour legislation, the
provisions of his IPC draft were poorly coordinated and at odds with it. He failed to
anticipate the reciprocal legal regimes that emerged around indentured labour, an outside
supervisory regime over the trade in indentured labour that attempted to ameliorate, and was
in constant tension with, local measures of labour control. This was closely reminiscent of the
patterns that played out in colonial slavery and imperial supervision in the 1820’s and 30’s
that Macaulay and fellow abolitionists had struggled against.
During the 1820’s and early 30’s the Colonial Office had focused on regulating
conditions of slavery and largely neglected colonial master and servant laws adopted or
modelled on English laws from the 18th and early 19th centuries. The apprenticeship scheme
for freed slaves that operated for four years in the West Indies introduced special magistrates
to supervise labour conditions. The local master and servant laws were combined with the
powers of the special magistrates and developed into a new system of ‘voluntary servitude’
for indentured labourers. The system was premised on ensuring stable labour costs and
preventing withdrawal or disruption of labour services.
Recruited by agents and transported with promise of free return, workers typically
arrived on five year renewable contracts which specified pay rates and working hours. Once
on plantation they were regulated by a pass system to control movement from plantations and
through local master and servant laws were subject to fines and imprisonment for a wide
range of workplace violations. While the special magistrates initially appointed by London
may have been often been at odds with plantation owners during the apprenticeship period
1834-8, they became increasingly beholden to local elites in the years following. The
magistrate supervised local work conditions and discipline and exercised wide policing
powers (surveillance of workers, the pass system and powers of detention without trial). 97
As noted in part one, James Stephen, who earlier battled planter-dominated colonial
governments over amelioration measures for slaves and the administration of the
apprenticeships, attempted to be vigilant in the supervision of the emerging indenture system.
Fraud in employment contacts, particularly the contract terms and transportation
arrangements was his primary concern, and as we have seen, the trade, recruitment and
transportation of workers was regulated by the colonial government in India. Imperial
supervision became more sporadic after the late 1840’s as direct engagement by the Colonial
and India Offices came to be coordinated by the Colonial Land and Emigration Commission
which acted as arbiter between interests in India and the planter colonies. Penal sanctions
were expanded in relatively unconstrained manner in colonial master and servant laws from
the 1850’s and the indenture system continued to expand as the main source of plantation
labour until the early 20th century.
c) An Illustrative Example: Chief Justice Gorrie and Indentured Labour in the Pacific
The tensions between local colonial labour measures and external restraints on planter
exploitation were manifested in numerous British colonial settings in the mid and late 19th
century, reflected in numerous clashes between governors and or judges appointed by the
imperial government and local elites. John McLaren’s recent study of colonial judicial
controversies includes several examples of such conflicts involving indentured labour,
96
See Mohapatra, n16, 455; see also, M. Turner, ‘The British Caribbean, 1823-1838: The Transition from Slave to Free Legal Status’ in Hay
and Craven, n 16, 303
This generally describes the regime in operation in British Guiana, Trinidad and Jamaica. There were variations and differences between
planter colonies –see eg., Mohopatra, Ibid.
97
22
notably the Beaumont-Hincks imbroglio in British Guiana in the 1860’s and a series of
clashes between itinerant judge John Gorrie and planter establishments in Mauritius, Fiji and
Trinidad between 1870 and 1892. 98
Gorrie’s tenure in Fiji nicely illustrates the tensions between planter labour practices
and external supervision. As Bridget Brereton’s biography notes, the British antislavery
movement was a powerful influence on the young Gorrie, instilling the conviction that
persons of all racial backgrounds should enjoyed legal equality throughout the Empire and
that ex slaves and indentured workers needed special protection from European settler elites
through the agency of colonial oversight and the courts. 99 His beliefs were reinforced by his
involvement as a lawyer collecting evidence from witnesses for the British Jamaica
Committee and the 1866 Royal Commission review of Governor Eyre’s repressive measures
following the 1865 rebellion in Jamaica. 100 In 1870 Gorrie was appointed judge in Mauritius,
accompanying the reforming governor Arthur Gordon, and together they clashed with
planters there by taking action against abuses of indentured Indian labourers and energetically
pushing through property and labour reforms. Gordon was sent to Fiji in 1875, again
accompanied by Gorrie as the new Chief Justice. In Fiji they not only contended with local
planter interests but strode into conflicts going back over a decade involving the larger south
west Pacific labour trade and sugar plantation interests in Queensland.
The Queensland plantations recruited over 50,000 Melanesian islanders as labourers
and a series of Australian trials, 1869-72, involving charges of slaving, kidnapping and
murder, publicised the violence accompanying the trade. 101 The Queensland government
issued regulations requiring the presence of a government agent on recruiting ships connected
to the colony but further regulation was hindered by the fact that the islanders did not fall
under colonial jurisdiction. The imperial Pacific Island Protection Act, 1872 and the creation
of Western Pacific High Commission, 1877 established a more elaborate system for the
regulation of recruitment and the prosecution of crimes committed by recruiters. The
legislation required a license from the Governor or senior British consular officer for all
vessels engaged in labour traffic and recruiting agents were to accompany voyages. Enlisting
any Pacific natives against their will and fraudulent representations were made offences, and
the Supreme Courts of any of the Australasian colonies were empowered to try any British
subject for offences committed in any area of the Pacific not under a civilised jurisdiction.
Courts were authorised to compel attendance of witnesses and hear native evidence.
However, the imperial legislation empowered but did not require colonial courts to act and
98
McLaren, n 4, especially ch.10. McLaren provides numerous Australian example of judicial tensions with local elites and Colonial Office
interventions, including Jeffrey Bent, who went from controversy in New South Wales to conflicts with the plantocracy in Granada, Francis
Forbes, former Chief Justice of Newfoundland who became the first Chief Justice of New South Wales, John Walpole Willis who was
removed from King’s Bench in Upper Canada, was briefly on the bench in British Guiana before landing on the New South Wales Supreme
Court, and Benjamin Boothby of the South Australia Supreme Court. Francis Hincks a colonial politician who had headed government in
the province of Canada, had been appointed by London as governor of British Guiana and formed close alliance with planter interests. He
soon clashed with Joseph Beaumont appointed Chief Justice in 1863 when the latter sought greater control over the local administration of
justice and combated the partiality of magistrates when disciplining workers, the unjust application of master and servant laws and
questioned the validity of the colonial laws.
99
See Brereton, n 4.
100
The Committee, originally formed by abolitionists, originally led by Charles Buxton, son of Thomas Buxton, sought review of Eyre’s
official account and eventually recommended Eyre’s prosecution as John Stuart Mill, supported by leading figures in the liberal
intelligentsia, took over leadership (Fitzjames Stephen provided one of several legal opinions). As initial government support for him
faltered in the face of the Jamaica Committee’s agitation Thomas Carlyle led the Eyre Defence Committee which mobilized reactionary
public opinion to pressure the Liberal government and the Colonial Office for stronger government in the face of excesses against
Europeans in insurrections such as India in 1857 and Jamaica in 1865--see Kostal, n 4, Hall n 3, 23-7
101
See generally, Weiner, n 4, 42-94. See also Deryk Scarr ed., A Cruize in A Queensland Labour Vessel to the South Seas (W.E. Giles,
Canberra ANU Press, 1968). A prosecution against officers of the recruiting ship Daphne were initiated in 1869 by Captain George Palmer,
formerly if the West African slave trade patrol who was dubbed the ‘Wilberforce of the Pacific.’ A kidnapping case against the captain of
the Jason was more successful with a conviction upheld in 1871 and in 1872 a massacre of 70 islanders in Fiji aboard the Carl resulted in
murder convictions in Sydney.
23
prosecutions outside of Queensland proved difficult. The creation of a high commissioner to
with jurisdiction over all British subjects in the western pacific and to make regulations and
issue licences authority was created by imperial order in council in 1875. Gordon who arrived
as Governor for Fiji from Mauritius was appointed to the post in 1877. Gorrie, Fiji’s new
Chief Justice, became Chief Judicial Commissioner, also serving as Acting High
Commissioner and when Gordon was on leave in UK, and diligently pursued injustices and
extended the authority of the Commission. 102
However, prosecutions outside of Queensland continued to prove difficult and
expansion of production in the late 1870’s with new disease resistant sugar cane varieties and
the availability of new lands for cultivation, had led to increases in recruitment. The
Queensland government accepted increasing responsibility for the prosecution its residents.
Another series of kidnapping and murder trials in 1884-85 led to a Queensland Royal
Commission, which resulted in new local regulations governing indentured labour within the
colony and the aim of gradual ending of the trade in indentured labour by 1890. 103 Some
interests during the Australian federation discussions contemplated inclusion of Fiji itself as
well as New Zealand, reflecting lingering resentments about British imperial intervention. In
Fiji Gorrie drafted protective ordinances for the Fiji legislative council to regulate the transfer
of land to Europeans, preserve native cultures and limit the exploitation of native labour, and
also introduced procedures for the expedient resolution of labour disputes. 104 Local sources
of labour were increasingly protected as local plantation demands for labour grew and India
became the primary source. 60,000 indentured labourers brought from India between 1879
and 1920. As Weiner summarises the situation, by the beginning of the 20th century the
Colonial Office and the colonial government in India regarded labour relations in Fiji as more
troubled than in the West Indies, representing the indenture system at its worst:
In a sense, the price for Gordon’s experiment in indigenous protection within a
self-supporting Empire was paid by these Indians, whose labour enabled Fiji
to succeed economically while allowing Fijians to keep their land and a good
deal of their culture. Within this experiment, the protection of the law could be
called upon by Fijians, at least against Europeans, but far less effectively by
imported Indians. 105
Conclusions:
Macaulay’s IPC was much more than a criminal law reform concerned with the more
efficient regulation of crime and effective administration of justice. It was about modern
public ordering and governance, reflecting a range of pressing imperial policy concerns,
including labour relations, the particular focus of this study. Macaulay’s project sought to
reconstitute British colonial rule according to utilitarian legal and political theories, and in
greater conformity to formal claims about the rule of law and the other attributes of British
constitutionalism. It was also drafted in the midst of the early phases of the transition from
102
Weiner, Ibid, 42, 52-3, 80
103
Weiner, Ibid, 55. Planters and many Queenslanders resented representations of the Kanakas as the new slaves in the Australian and
British press but the 1884 Alfred Vittery murder case was caused considerable embarrassment, prompting the Griffith government to
appoint a Royal Commission to enquire into labour traffic while also representing the political constraints it faced to the imperial
government. The 1885 Commission Report revealed continuing wide-ranging illegalities and recommended colonial legislation to better
regulate recruitment and employment on plantations and a gradual end of the labour trade within 5 years.
104
Summary proceedings without jury were intended to overcome the obstacles faced by labourers in bringing forward cases of workplace
abuse. The procedures led to a flurry of appeals to the JCPC by planter interests. For details see Brereton, n 4, chs 4&5
105
Weiner, n4, 94. Gorrie was posted in 1883 to Antigua and the Leeward Islands where plantations were in decline, and then became Chief
Justice in Trinidad in 1886 (jurisdiction over Tobago was added in 1889). His confrontation with plantation owners over attempts to
improve access of indenture labourers to the courts and his views about their rights and the obligations of employers led to an attempt to
remove him from the bench and he died in 1892 while on leave see Brereton, n 4, chs 7&8; McLaren, n 4, 268-72
24
slavery to indentured labour in the planter colonies of the Empire, a new system in which
migrant Indian workers played a dominant role.
Assessed as law reform in its own terms, Macaulay’s code is groundbreaking and
progressive. His ambitious aim of according formal equal legal status to all subjects under
modernised laws, and the priority he placed on comprehensiveness, consistency, and
accessibility (notwithstanding the elusiveness of Benthams’s aims of scientific, universal, and
comprehensive legislation), remains an impressive technical achievement.
Assessed historically in broader political and economic context, as well as
consequences and experience, Macaulay’s law reform legacy is rather more problematic. The
IPC was the product of a particular time and place, cultural and intellectual context.
Macaulay’s premises were informed by the limits of his experiences and outlook, the
intellectual milieu of British liberalism and European Enlightenment rationalism. And despite
utilitarian and liberal conceits, the IPC was not a disinterested reform but drafted and
implemented within a political context of imperial interests concerned about effective
colonial governance, crises and challenges to its sovereignty. The IPC was a quasiconstitutional projection of British authority. While promotion of the rule of law and the
reduction of archaic forms of discretionary authority and status differences represent an
advance, the aim of making the law more effective and legitimate in culturally diverse
frontier settings was also about sovereignty. The IPC was designed to make the law more
effective and legitimate in a culturally diverse frontier setting thereby better regulating
relations between the colonisers and the colonised. Despite Macaulay’s vague aim of a free
India at a distant point in the future, the adoption of the IPC by authoritarian legislative
decree, denial of indigenous diversity, and common obligations of citizenship as defined by
an external power while colonial difference persisted, reflect the limits of assimilative liberal
ideals and contradictions between sovereignty and liberal rationalities. The importance of the
1857 Mutiny in making enactment of the IPC a legislative priority and the persistence of
differences in legal status highlighted by the Ilbert bill controversy, reveal these political
dimensions. The persistence of indigenous slavery and the growth of indentured labour,
despite Macaulay’s concern about these issues, reveal the limitations of Macaulay’s reforms.
Yet it is also reductionist to dismiss the IPC as essentially an exercise in power. The
enduring qualities of Macaulay’s codification as comprehensive and progressive law reform
and his liberal commitment to free and dignified labour cannot be cynically dismissed. In
retrospect Macaulay could have done more to anticipate and head off the developing new
colonial system of labour exploitation, and his loss of interest in IPC after his return from
Indian facilitated the retrograde changes made to his draft. But he cannot be blamed for these
failures. Rather, the experience illustrates the limits of progressive, liberal aims of criminal
law reform with the context of imperial economic imperatives and the political impulses of
colonial rule.